TMI Blog2019 (8) TMI 1689X X X X Extracts X X X X X X X X Extracts X X X X ..... llant from filing a Writ Petition before the High Court to challenge the determination by the Designated Authority, if it felt aggrieved. However, the Appellant neither availed the remedy of filing a Writ Petition in the High Court nor did it file an appeal before this Tribunal within the stipulated time - Mere filing of a Writ Petition by another party or its pendency, cannot be said to be a good reason for the Appellant to not to file a Writ Petition before the appropriate High Court or an Appeal before the Tribunal within the time provided for. The Appellant had to itself avail the remedy. There was no reason for the Appellant to await the decision of a Writ Petition filed by some other party and that too not against the determination ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has to be filed before the Tribunal within ninety days of the date of order under appeal as provided for in Section 9C of the Customs Tariff Act, 1975 [the Act]. The period of 90 days expired much earlier than the filing of the appeal on 05 December, 2018. The Appeal was accompanied by an application for condoning the delay in filing the appeal. 3. Subsequently, the Applicant filed another application for condoning the delay on 13 August, 2019. The reasons stated in the application to explain the delay are as follows : a. Pursuant to discussion between the constituent of the domestic industry before Respondent No. 1, it was decided to file writ petition before Bombay High Court as no appeal under Section 9C of the Customs Tariff Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negative recommendation. But again the legal counsel advised the applicant to await the decision of the Hon ble Bombay High Court in the pending writ petition filed by the constituent of the domestic industry against the impugned final finding. Since the writ petition is already pending against the impugned final finding the Hon ble CESTAT may not hear the appeal arising out of the same impugned Final Findings. h. The Bombay High Court vide its order dated 02.11.2018 disposed of the writ petition filed by the one of the domestic industries against the impugned Final finding inter-alia stating as follows : 5. However, we note that the petitioner had moved this Court under Article 226 of the Constitution of India within a period of 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for the Applicant/Appellant submitted that earlier, in view of the decision of this Tribunal in M/s Panasonic Energy India Company Limited Others vs Union of India [2017 (357) ELT 110] , the Appellant was under the impression that no appeal would lie against the negative determination by the Designated Authority. The issue as to whether a Writ Petition or an appeal can be filed against the negative determination by the Designated Authority was the subject matter of a Writ Petition filed by Jindal Polyfilm Ltd. before the Delhi High Court, which, ultimately, on 20 September, 2018 held that a statutory appeal under Section 9C of the Act is maintainable before the Tribunal even against a negative recommendation of the Designated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt woke up and filed this appeal in the Tribunal. It has, therefore, been submitted that the application should be rejected. 6. We have given our thoughtful consideration to the submissions advanced by the learned Counsel for the Appellant and the learned Counsel for the Respondents. 7. It is true that this Tribunal in Panasonic Energy India Company Limited held that an appeal cannot be filed before the Tribunal against a negative determination by the Designated Authority, but in such a situation when the view of the Tribunal was very clear, nothing prevented the Appellant from filing a Writ Petition before the High Court to challenge the determination by the Designated Authority, if it felt aggrieved. However, the Appellant neither a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only when the Bombay High Court permitted the said Petitioner to file an appeal before the Tribunal, in view of the decision of the Delhi High Court in Jindal Polyfilm Ltd., that the Appellant filed this appeal. 9. This contention of the learned Counsel for the Appellant cannot also be accepted. Bombay Dyeing Mfg. Co. had filed a Writ Petition in the Bombay High Court in April, 2018. Likewise, the Appellant could also have filed a Writ Petition in the Delhi High Court. Any decision by the Bombay High Court would not have come to the aid of the Appellant for explaining the delay in filing an Appeal subsequently. 10. In any view of the matter, the present appeal was filed beyond 12 days from the time granted by the Bombay High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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